Fuster v. Eastern Airlines, Inc.

545 So. 2d 268, 1988 WL 131135
CourtDistrict Court of Appeal of Florida
DecidedDecember 13, 1988
Docket87-571
StatusPublished
Cited by10 cases

This text of 545 So. 2d 268 (Fuster v. Eastern Airlines, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuster v. Eastern Airlines, Inc., 545 So. 2d 268, 1988 WL 131135 (Fla. Ct. App. 1988).

Opinion

545 So.2d 268 (1988)

Joaquin FUSTER, Appellant,
v.
EASTERN AIRLINES, INC. and the Travelers Insurance Co., Appellees.

No. 87-571.

District Court of Appeal of Florida, First District.

December 13, 1988.
Rehearing Denied July 19, 1989.

Edward Schroll, Miami, for appellant.

*269 H. George Kagan and Shirley A. Visnoski, of Miller, Hodges, Kagan & Chait, P.A., Deerfield Beach, for appellees.

JOANOS, Judge.

Joaquin Fuster appealed from the second of two orders issued by the deputy commissioner, in which wage-loss benefits were denied in a worker's compensation proceeding. He raised the following two issues: (1) Whether there is competent substantial evidence to support the deputy's finding that claimant suffered no permanent physical impairment as a result of the accident on December 22, 1981; and (2) Whether the deputy commissioner abused his discretion in rejecting unrefuted medical evidence that claimant's last accident of December 27, 1983, resulted in permanent impairment. Eastern Airlines Inc., and the Travelers Insurance Company, the employer and carrier, cross appealed, challenging the deputy's first order and raised these points: (1) Whether the deputy commissioner erred in finding the statute of limitations was not a bar to a claim filed more than two years after the 1981 accident resulting in injury; and (2) Whether the deputy commissioner's finding that claimant suffered a compensable injury on December 27, 1983, and provided timely notice thereof to his employer, was supported by competent substantial evidence. On direct appeal, we affirm the deputy's last order in part and reverse in part. On cross-appeal, we affirm on both issues.

Claimant, a 47 year old ex-pilot, was employed with Eastern Airlines from July 1972 until April 1984. During this period of employment, claimant sustained three separate back injuries which culminated in the denial of an airman medical certificate due to sciatica and herniation of an intervertebral disc. Claimant's first back injury occurred on December 2, 1975, when the employer was insured by American Motorist Insurance Company. Claim for benefits for this accident was filed on October 12, 1984, and the employer and carrier as to that accident raised the statute of limitations as a defense to the claim. The deputy found that the two year statute of limitations was a bar to that claim because more than two years had passed without receipt of medical care or compensation.[1] The order denying that claim was not challenged on appeal.

On December 22, 1981, claimant sustained another back injury during the course of his employment, and he saw the employer's physician, Dr. Millett. Dr. Millett permitted claimant to fly with a back brace. Claimant continued to fly for the *270 employer for the next two years at full pay. The deputy determined that the employer knew of claimant's "continued disability" resulting from his accident of December 22, 1981, and that the employer made an exception for this claimant and permitted him to fly at full pay with continued use of the back brace. The employer did not deny notice or liability, except as to timeliness. The deputy found that the use of the prescribed back brace, provided by the employer, served as the continued furnishing of medical care and compensability in regard to the December 22, 1981, back injury, for as long as the practice continued. Further, the deputy found the statute of limitations was not a bar to the claim filed on October 12, 1984.

Claimant also claimed that he injured his back again on December 27, 1983. The employer and its carrier have maintained that claimant did not sustain an accident on that date, and that no notice of such accident was furnished to the employer. Captain Stacey, claimant's supervisor, could not recall the accident or what occurred thereafter. However, based upon testimony of claimant, the deputy found that on December 27, 1983, claimant was on the first day of a three day trip for the employer and that this accident did occur. It was further found that the employer was notified of the accident and a replacement requested. Therefore, the deputy concluded that as a result of this accident, claimant's "pain and disability increased" and that claimant continued to fly only because he could not be immediately replaced. Upon being replaced, claimant stated that he went back to Miami and immediately reported to the employer's medical department. However, the medical department records do not contain any information specifically regarding claimant's alleged accident of December 27, 1983.

In reviewing both the employer's medical department records and the testimony of claimant, the deputy accepted the testimony of the claimant and found that the medical department records were incomplete and could not be relied upon for accuracy. The deputy found that it was not credible that this large employer would have no record of replacing the claimant in the midst of a regularly scheduled flight, as had occurred. Therefore the deputy accepted the testimony of claimant regarding the events of December 27, 1983, and thereafter. In his first order dated April 2, 1986, the deputy found that the December 22, 1981, and the December 27, 1983, accidents were compensable, and retained jurisdiction for the purpose of determining causal relationship between said accidents and claimant's entitlement to benefits resulting therefrom.

After the above interlocutory order, claimant provided proof on the remaining issues dealing with causal relationship and disability benefits allegedly due because of the accidents of December 22, 1981, and December 27, 1983. In his second order, the deputy found that following the accident of December 22, 1981, when claimant aggravated his preexisting back condition, he was grounded by the employer's medical department physician, Dr. Millett, and remained unable to fly until January 11, 1982. The deputy found that by January 11, 1982, claimant was asymptomatic and returned to regular work. Further, the deputy found claimant totally disabled as a result of his December 1981 accident, from December 23, 1981, to January 12, 1982.

As to the December 27, 1983, incident, the first doctor to see claimant following the accident was Dr. Serrano, who saw claimant two days later. The deputy noted that the accident was not mentioned by claimant and all references to the back problem were to the 1975 accident. The doctor told him not to work and that was the last time the doctor saw claimant. The next doctor to see claimant was Dr. Charles Dalbey, an orthopedic surgeon. Dr. Dalbey treated claimant on at least six different occasions and opined that claimant had reached MMI on January 31, 1985. The claimant declined the surgery that Dr. Dalbey recommended. The deputy found that Dr. Dalbey had done all that was medically possible to remedy claimant's condition, short of surgery. Dr. Dalbey found a 5 to 6 percent permanent impairment rating of the whole body. The deputy further found *271 that at no time did Dr. Dalbey attribute claimant's condition either to the accident occurring in 1981 or the accident occurring in 1983.

Claimant saw Dr. Boyd on November 19, 1984. Dr. Boyd opined that all three accidents contributed to the back problem. But the deputy found that Dr. Boyd is not an expert in the field of orthopedics. Further, because Dr. Boyd saw claimant so remote in time from the accidents themselves, and was unfamiliar with AMA physical impairment ratings, the deputy rejected Dr. Boyd's testimony.

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Bluebook (online)
545 So. 2d 268, 1988 WL 131135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuster-v-eastern-airlines-inc-fladistctapp-1988.